Walsh v. Pagra Air Taxi, Inc., No. 48716.

• Decision Date: 10 August 1979
• Docket Number: No. 48716.
• Citation: 282 NW 2d 567
• Parties: Thomas WALSH, Respondent, v. PAGRA AIR TAXI, INC., Appellant, Roy L. Graham, Respondent, City of Mankato, Defendant.
• Court: Minnesota Supreme Court

282 N.W.2d 567 (1979)

Thomas WALSH, Respondent, v. PAGRA AIR TAXI, INC., Appellant Roy L. Graham, Respondent City of Mankato, Defendant.

No. 48716.

Supreme Court of Minnesota.

August 10, 1979.

Farrish, Johnson, Maschka & Hottinger and Gerald L. Maschka, Mankato, for appellant.

Walbran, Walbran & Walbran and John P. Walbran, Owatonna, for Walsh, respondent.

Heard before ROGOSHESKE, SCOTT, and MAXWELL, JJ., and considered and decided by the court en banc.

ROGOSHESKE, Justice.

Defendant Pagra Air Taxi, Inc. (Pagra) appeals from an order of the district court denying its motion for judgment notwithstanding the verdict or for a new trial in a negligence action arising out of Pagra's failure to extinguish a fire in plaintiff Thomas Walsh's airplane before it was reduced to salvage value. The chief issues raised are: (1) Did Pagra owe Walsh a duty to fight the fire in Walsh's airplane? (2) Was there a causal connection between any negligence on the part of Pagra and the airplane damage? (3) Was Pagra prejudiced by the trial court's order that the city of Mankato (city) was causally negligent as a matter of law? We hold that Pagra owed Walsh a duty, that there was sufficient evidence of a causal connection between Pagra's negligence and the airplane damage, and that Pagra was not prejudiced by the trial court's order finding the city causally negligent. We therefore affirm.

On October 2, 1975, Pagra was the fixed base operator at the Mankato airport. A "fixed base operator" is a general aviation support service, found at most municipal airports in small- and moderate-sized communities, which sells airplane fuel, provides airplane repair, and operates a Unicom radio system. A Unicom system is available for the use of pilots of small aircraft in obtaining information about wind direction, weather, preferred runway, and other miscellaneous matters. Pagra, a private commercial business, functioned in its capacity as fixed base operator under a lease with the city. Under the terms of its operating agreement, Pagra was required to provide three employees trained and available to use firefighting equipment located at the airport, including a firetruck separately housed and maintained there by the city. The Mankato Municipal Airport Operations Manual also required the presence of three such firefighters at the airport, because Mankato was serviced by North Central Airlines, a certified air carrier.

On September 30, 1975, Roy Graham, the airport manager,¹ discovered that the door to the service building housing the firetruck at the airport had been damaged by city employees while removing a mower tractor from the garage. Graham immediately notified city officials, and they unsuccessfully attempted to repair the door on October 1.

On the morning of October 2, 1975, plaintiff Walsh traveled to South Dakota from Owatonna, Minnesota, in his Beechcraft Bonanza with a passenger, Larry Moening. Walsh and Moening left Platte, South Dakota, for their return trip to Owatonna around 2:30 p. m. Near the Minnesota-South Dakota border, Walsh detected the odor of fuel in the cockpit and the gauges of the airplane began to indicate excessive fuel use. Walsh realized that fuel was leaking somewhere aboard the airplane and considered the possibility of fire. His principal concern, however, was not to land the aircraft but to get to a facility that could remedy the problem.

Walsh testified that near New Ulm, Minnesota, he radioed the Mankato airport on the Unicom, advised that his airplane had a serious fuel leak and he intended to land, and asked them if a mechanic was still on duty. Walsh testified that Pagra employees responded that they understood his message regarding the serious fuel leak and that the mechanics had just left. At that time or shortly thereafter, Walsh asked for wind speed, direction, and "favored runway" at Mankato and was provided the requested information. He did not request that Pagra have a firetruck waiting upon landing, and he did not declare any kind of emergency.

Despite the fuel leak, Walsh was able to land the airplane without incident. The engine quit upon landing, and both Walsh and his passenger got out of the airplane. Upon examining the airplane, Walsh saw a green stain indicating a leak of high octane aviation fuel. Pagra employees, noticing that the airplane had stopped, drove to it in the fuel truck to ask if there was any need of fuel. The Pagra personnel testified that they offered to tow the aircraft. Walsh testified that he was aware that Pagra had towing equipment, but he did not ask them for a tow and could not recall that they had offered one. There was testimony that in an airport not supervised by a control tower, the pilot is in command and dictates what action is to be taken with regard to the airplane.

Walsh decided to attempt to start the airplane to taxi it to the airport buildings. There was no testimony that he requested anyone to stand by with fire extinguishing equipment. Before attempting to start the airplane, he directed his passenger to ride with the Pagra personnel. Walsh testified that he recognized a risk of fire and that he did not want to subject his passenger to that risk. At the time he got back into the airplane and attempted to start it, he was aware that it had a fuel leak and that if the engine backfired during starting there was a possibility of igniting fuel vapors.

Walsh attempted to start the airplane at least three times. On all occasions except the last, the engine started, the plane traveled a short distance, and then the engine killed. On the last attempt to start the airplane, there was a "soft explosion" and the plane burst into flames. William Richards, one of the three Pagra employees who had come to inquire about the disabled airplane, went to get a fire extinguisher, and Bruce Carter, another Pagra employee, ran to get the firetruck out of the city's garage. Richards testified that he could not get close enough to the fire to use the hand fire extinguisher because of the heat. Carter, who ran 300 to 400 yards to the city garage, testified that when he turned around at the door of the garage the plane's cockpit was already engulfed in flames. The door to the garage could not be opened, and the Pagra employees, therefore, could not get the city's firetruck out of the garage. Carter then went to call the city's downtown fire station, which answered the call. Before the fire was extinguished, the aircraft was reduced to salvage value.

The jury returned a special verdict allocating 22 percent of the negligence to plaintiff Walsh, 42 percent to defendant Pagra, and 36 percent to the city, notwithstanding that it found that the negligence of the city was not a direct cause of the fire damage. After considering the various post-trial motions, the trial court changed the answer to the causation question with regard to the city from "no" to "yes," denied all other motions, and entered judgment for Walsh for $26,229. Following the taking of this appeal, plaintiff Walsh settled with and released the city and Roy L. Graham by way of a so-called "Pierringer release."

Pagra's primary argument on appeal is that it owed no legal duty to Walsh and that the complaint, therefore, fails to state a cause of action. We do not...